An Acceptable Arrangement

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From “madness” to “Our First, Most Cherished Liberty.” American bishops praise Cardinal John Gibbons for bringing the message of religious freedom to Rome in 1887, but tend to overlook the then well-established opposition to such a notion. Popes Gregory XVI, Pius IX, and Leo XIII all condemned the idea of religious liberty, and one proclamation even declared it a deliramentum—that is, an insanity. Only in 1965, at Vatican II, did the shift come. The traditional argument against religious freedom was that error (that is, non-Catholic religion) has no rights. Vatican II said error might not have rights but people do, and one of those rights is to worship as one sees fit; to force people to turn away from the religion to which they think God calls them is to violate their consciences, and thus to force them to sin.

In the United States, various faith-affiliated groups have since come to invoke religious liberty to justify a range of practices and activities (the refusal of a bakery to provide cakes for same-sex weddings being one well-publicized example). The rhetoric can become particularly overheated when it comes to the birth-control provisions of the Affordable Care Act. On one side are the Little Sisters of the Poor, who with the support of some thirty organizations claim that big government is forcing them to violate their religion and whose case was heard by the Supreme Court this year. (In this essay, I will use the Little Sisters as short-hand for the others. Potentially this group could be vastly expanded to include Hobby Lobby–like groups as well.) On the other side are supporters of the ACA’s birth-control provisions, arguing that women should not be discriminated against merely because their employer is religious.

First Amendment issues are notoriously tricky. Religious liberty can be used to protect unpopular but good practices, such as wearing the hijab. But it also can and has been used to shield practices that are morally wrong, such as slavery. Critics, including many women, see in the Little Sisters’ argument a demand for the right to do wrong—namely, deprive women of a good that is offered by law to all other women. After some deliberation, the Supreme Court kicked the Little Sisters case back to lower courts with the mandate to find a solution.

ONE POSSIBLE SOURCE of a solution, paradoxically enough, is Catholic moral theology. Over the centuries, it has developed what is called the principle of cooperation. Terminology aside, this principle is not some long-lost ancient doctrine, but a practical guide for people in dealing with everyday problems. Whenever we make a decision, we are involved in a world full of tradeoffs between good and evil. We turn on the lights, and we add carbon dioxide to the atmosphere because of the coal-generated electricity we use. Ordinarily, we do not consider flipping a light switch to be morally evil. In this and in matters far more serious, we implicitly justify ourselves through the principle of cooperation.

As I shall argue, that principle is now being misused to claim that the Little Sisters would commit a mortal sin if they sign off on the following sentence: “On account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered.” A normal reader might say the sentence means: “No! We oppose cooperation.” Instead, some fifty Catholic moralists argued in an amici curiae brief to the Supreme Court that “no” means “yes.” In order to understand this twist, it is helpful to review formal and material cooperation, which are two arcane terms for very commonplace reasoning.

Formal cooperation means that we share in the wrongful intention of a malefactor. If a nurse happily volunteers to help in delivering abortions, she formally cooperates. If, improbably, a miner in Wyoming was explicitly happy to produce coal in order to power a Chicago electric company’s generators so as to provide electricity for a South Side abortion clinic to do its deed, that miner would be formally cooperating. Usually, of course, that miner has no such wrongful intention.

Nevertheless, he and the power company do materially cooperate. That is, they facilitate or assist in the wrongful deed. Without people like them, there would be no electricity for the abortion clinic. But their cooperation is very distant, both geographically and practically. Even more distant from actual involvement would be all of us who buy electricity, thereby participating in and funding a system that provides electricity to abortion clinics. In contrast, the nurse who assists at abortions is much more immediately involved. In between the cooperation of the miner in Wyoming and the nurse next to the woman having an abortion, there is a great gradation of involvement. The more immediate, the stronger the justification required for materially cooperating.

Material cooperation usually involves three considerations: closeness of involvement, which we have just considered, along with proportionality and alternatives. Proportionality simply means more good is effected than bad. Of course, we should not get obsessive about turning on the lights, but in larger matters we typically use this criterion: it’s probably better to turn on the lights than remain in the dark. This is not the only criterion, but it is important. The moralists who oppose the ACA argue that signing the single sentence in the accommodation form is indeed a major matter.

There are always alternatives, but not all alternatives are reasonable. When German bishops provided pre-abortion counseling in Catholic settings with the goal of dissuading women from having abortions, Pope John Paul II told them to stop the counseling, with the likely result that more abortions were performed—but the church was saved from cooperation. The same occurred when the United States bishops stopped Catholic Charities from providing any adoptions, lest it help gay couples become parents: the church was saved from cooperation.

Thus one drastic alternative might be for all Catholic social-service organizations to end their ministries, lest they have to sign the single sentence that says they oppose the provision of birth control. Of course, another alternative is to try to change the requirement that they fill out the form, and that was the basis of the Little Sisters petition that went to the Supreme Court. Presumably, the Catholic Church’s true preference would be that neither the government nor anyone else make birth control available to anyone, but that is to demand the impossible. Paradoxically, the more the church pushes such demands in our pluralistic culture, the less attractive the church becomes to non-Catholics.

BEFORE WE CONSIDER the moralists’ objection, we need to look briefly at the present requirements of the ACA and, in particular, at its accommodation for religious organizations like the Little Sisters. (Parishes and small religious communities that serve only fellow Catholics are already completely exempt from the ACA’s requirements.) The ACA mandates that access to free birth control be included in all health-care plans. Out of deference to religious liberty, the ACA gives the Little Sisters and others the opportunity to opt out. They do not have to opt out, and most religious organizations likely will not. But the government needs a way to learn which groups do want to opt out, so it asks them to sign a form that states they oppose cooperation.

Under this accommodation, religious organizations do not have to pay for, arrange, or get others to provide birth control. All they have to do is make known their religious objection. When they do so, the involved insurance company or plan operator does the rest. (It has been said that insurance companies agreed to this provision because, financially speaking, maternity and subsequent child health-care costs are far greater than provision of birth control.)

This brings us to the objections of the fifty moralists. Their first point is that the court has no business criticizing or disagreeing with a religious organization’s philosophical or religious reasoning, even when that reasoning adversely affects others (such as non-Catholic employees or spouses of employees). As a moral theologian, I am not bound by such restrictions; hence this article. I fear for the church’s reputation.

The moralists argue that signing off would involve the Little Sisters in both formal and material cooperation. As to formal cooperation: To most people, when the Little Sisters say they oppose providing coverage, that means they are not formally cooperating. But according to these moralists, their “no” means “yes.” They claim the Little Sisters’ expressed opposition is itself what authorizes others to do the deed. They overlook the fact the ACA, as federal law, does not need the Sisters’ authorization. The moralists further claim that even if the Sisters strongly object, not only in their hearts but also publically, to the provision of birth control, they are nevertheless forced to share in the intention of those who will provide it. This is because they know that their decision to opt out will be part of a chain of events that leads to the provision of contraception, albeit by some other party.

Now, if a robber says, “Your money or your life,” most of us would not think we are formally cooperating—that is, sharing the intention of the robber to rob us—if we hand over our wallet. True, we intend to hand over the money and thereby save our life, but we do not intend to be robbed. Closer to our present topic: If we refuse to cooperate by saying no to the robber, we would not be authorizing our own murder, even if we thought that would be the probable result. Rather, the responsibility would be almost entirely on the robber. Thus in similar fashion, the government, not the Little Sisters, is responsible for the mandate.

A second, even closer comparison is the long-standing practice of conscientious objection to involvement in war. A pacifist objects, knowing that the government will then just draft another person. But according to the moralists’ reasoning, this objection would be a way of formally cooperating in the war because the objector would thereby deputize the government to find a substitute. This kind of reasoning is, as the Vatican might once have put it, deliramentum.

There is no necessary or essential connection between the Little Sisters’ act and the government’s act. The Little Sisters do not give the government permission, because the government does not need permission. The ACA already makes birth control available, as most Americans (including Catholics) think it should. It does not require anyone to purchase or use birth control. Rather, its accommodation provides that women will not be deprived of birth control just because they work for religious institutions.

The moralists make the case that the Little Sisters are also materially cooperating in the ACA’s process. Obviously, that is true. They are answering a government question as to whether they want not to participate. The moralists conclude that the government intends to implicate the Sisters in its deed, and they cite texts that could be read that way. On that reading, the government is portrayed as acting maliciously. A more benign and, I think, more accurate reading is that the government recognizes that the Sisters might have religious objections and so it offers them a way out. That is the plain meaning of accommodation. The Little Sisters materially cooperate with the plan only in the sense that they accept the accommodation allowing them to opt out. They are cooperating even less than the person who hands over her wallet to the thief.

There is a supreme (pun intended) irony in the provisional judgment of the court to send the case back for further review. It said the Little Sisters need not sign off because, by bringing the case, they had already notified the government. But this means that if anyone else should now petition the judiciary, the government will be automatically notified that the petitioner wants to opt out of providing contraception coverage—and it is this very notification that the moralists say is evil.

The solution to this dilemma, I propose, is to disagree with the analysis provided by the moralists. By signing the government’s one sentence asking for an exemption, the Little Sisters are not formally cooperating. They are materially cooperating only in a minor and remote sense. Catholic moral theology gives them a way out.